Wills

1. What is a will?
2. Who can write a will?
3. Does a will have to be written in English?
4. How many pages is a will?
5. What property can be disposed of in a will?
6. When does a will become effective?
7. Can I revoke a will? If so, how?
8. Can I amend a will? If so, how?
9. Can a will create a trust?
10. Which person administers the will?
11. Does California recognize an oral will?
12. Is a will notarized?
13. Who should witness my will?
14. Are wills ever read?
15. Does an attorney have to assist in the drafting of the will?
16. What happens if I die without a will?
17. Where should a will be stored?
18. Would another state recognize a California will for probate?
19. What are the types of gifts that a testator may give?
20. Can I disinherit my relatives in a will?
21. Are wills public documents?
22. Is a photocopied will admissible to probate court?
23. How much does an attorney charge to write a will?
24. Can I just buy a will online?
25. Do I need to write a will?
26. I have more wills questions how can they be answered?

1. What is a will? (Top)

A will is a “document by which a person directs his or her estate to be distributed upon death.” Black’s Law Dictionary (8th ed. 2004).

2. Who can write a will? (Top)

In order to write a will, testamentary capacity, the individual must be 18 or more years of age who is of sound mind may make a will. Prob C § 6100

Clearly the first requirement, the age restriction, is a simple requirement that requires little explanation. An individual is either at least 18 years old or not.

As for the “sound mind” aspect, it is usually evident where a person lacks the capacity to write a will. Furthermore, there is a presumption that any adult has the capacity to write a will. Prob C § 810. Regardless, there are occasions where the individual lacks testamentary capacity and the will’s nullification follows. For example, in one case an uncle left his estate to his attorney and his banker (quite possibly the vilified employment combination around) rather than his nephew because he believed that his nephew had killed the uncle’s mother even though the nephew had not yet been born at the time of her death. Estate of Martin (1969) 270 CA2d 506.

3. Does a will have to be written in English? (Top)

No, surprisingly a will does not have to be written in English in order for it to be probated. Estate of Jepson (1918) 178 C 257, 172 P 1107 (German); Estate of Guerrero (1986) 183 CA3d 723 (Spanish). However, the English language translation must be attached to petition for probate of will in foreign language Prob C § 8002(b)(2).

4. How many pages is a will? (Top)

A will’s length is dependent upon the testator’s ambitions. Some testators have elaborate plans as to how to distribute their estate which could take up many pages. Whereas other testators have simple ideas for their estate’s distribution which only require a few pages to spell out. The wills that I have written are usually around 5 pages.

5. What property can be disposed of in a will? (Top)

A will governs the disposition of assets held solely in the client’s name that are not governed by beneficiary designation. Furthermore, if the estate is named as the beneficiary or if no designation has been made, a will can direct the distribution of such assets.

6. When does a will become effective? (Top)

A will becomes effective upon the testator’s death. This is in contrast to a revocable trust which becomes effective during the lifetime of the person who wrote the trust.

7. Can I revoke a will? If so, how? (Top)

Yes, a testator may revoke a will through two methods. A testator may revoke a will via a subsequent written instrument or through the mutilation of the previously executed will. Prob C §6120.

All the wills I write include an introductory clause which states “I revoke all wills and codicils that I have previously made.” This ensures that any client of mine will not have to worry about a previously executed will coming into play upon their passing.

8. Can I amend a will? If so, how? (Top)

Yes a will can be amended. The name used for this amending document is a codicil. A codicil is a testamentary document that supplements, amends, qualifies, or republishes a prior testamentary document. Estate of Benson (1944) 62 CA2d 866. A valid codicil is part of the will to which it refers, and both instruments are construed together as one.

9. Can a will create a trust? (Top)

Yes, a will can create a trust. A will that creates a trust is called a testamentary trust. The necessary elements for creating a testamentary trust are identical to creating a revocable trust.

10. Which person administers the will? (Top)

The person entrusted with administering the will is the personal representative.

11. Does California recognize an oral will? (Top)

No, California does not recognize oral wills. The four kinds of wills allowable in California: witnessed, holographic, statutory and uniform international, all require that it be in writing. So please do not create a video outlining your testamentary desires, it will not work.

12. Is a will notarized? (Top)

No, wills are not notarized. No competent California attorney will tell you to get your will notarized. The reason for this is because the most common type of will, a witnessed will, requires the attestation of two witnesses. Thus, in the eyes of the law, a notary’s signature will not qualify as two witnesses.

13. Who should witness my will? (Top)

Any person competent to testify to the requisite facts may act as an attesting witness. Prob C §6112(a). However, there are legal consequences if the witness doubles as a beneficiary. Hence, it is prudent to have disinterested witnesses sign the will in order for a bequest to not be invalidated on the grounds that an interested witness signed the will. Of note, Probate Code §6112 does not prescribe an age requirement for a witness. In light of this, it is prudent to have the witness be at least 18 years old because minors are not exactly the most reliable witnesses.

14. Are wills ever read? (Top)

Yes, wills are read on television shows and in the movies. In the world, however, wills are never read. Instead, wills are deposited with the local probate court. Therefore, the will because a public document and any person is free to inspect the will for their personal contentment.

15. Does an attorney have to assist in the drafting of the will? (Top)

There is no requirement that an attorney assist in the drafting of a will for a testator. A testator is free to draft a will absent the assistance of counsel. However, it is a criminal offense, namely a misdemeanor, for anybody other than an active member of the California State Bar to dispense legal advice in this state to an individual who is thinking about writing a will. Bus & P C §§ 6125-6126.

On a few occasions I have been asked to review a will that was written without the assistance of a lawyer. All of these wills were not legally sufficient or drafted erroneously. For example, one will I reviewed lacked the necessary number of witnesses, while another will disposed of property outside the testator’s estate.

The people who write wills without the assistance of counsel are almost always motivated by economic reasons. There is nothing inherently wrong with being frugal. However, the problem is that these wills often fail to meet legal sufficiency or incorrectly dispose of the testator’s estate. Consequently, the testator will end up having to pay more money in the end because the previously made mistakes will need to be corrected. Thus, the testator will need to expend money to just start the process anew.

16. What happens if I die without a will? (Top)

If a person dies without a will they are said to die intestate. The decedent’s estate is then allocated to their next of kin whoever that may be. If the decedent did not have any relatives or the decedent’s relatives could not be found, then the estate would escheat to the State of California.

17. Where should a will be stored? (Top)

A will may be stored in whatever location the person sees fit. For example, a will can be stored with the drafting attorney for safekeeping, although there are liability concerns for the attorney. Prob C §§ 700-735. Additionally, a will can be stored in a secure place such as a safety deposit box, safe or vault. Most of my clients have told that they have stored their will at their home in a filing cabinet. While there is the danger of fire, the number of fires that consume home these days is few and far between. Thus, I do not believe that a file cabinet is a bad place to store a will.

18. Would another state recognize a California will for probate? (Top)

I am not sure about this because I am licensed to practice in California only. You would need to discuss with an attorney licensed in that particular state.

19. What are the types of gifts that a testator may give? (Top)

There are 6 types of gifts that a testator may give. Prob C § 21117:

(1) A specific gift is a gift of a particular thing. For example, “I give my Omega DeVille Co-Axial Chronometer to Colin Locker.”

(2) A general gift is a gift from the general estate that does not give specific property. For example, “I give 10,000 shares of Exxon Mobil common stock to my brother Phinneas Gauge.”

(3) A demonstrative gift designates a particular fund or asset from which the gift is to be made. For example, “I give the sum of $5000 to John Braden to be paid from my Star One Credit Union Account.”

(4) A general pecuniary gift is a gift that is expressly stated either as a fixed dollar amount or as a dollar amount determinable by the provisions of the will. For example, “I give the sum of $25,000 to Charles Bronson.”

(5) An annuity gift is a general pecuniary gift that is payable periodically. For example, “I give the sum of $500 per month to my daughter Doris Duke for the rest of her life.”

(6) A residuary gift is a gift of all that remains after all specific and general gifts are discharged. For example, “I give the residue of my estate to Eleanor Easley.”

20. Can I disinherit my relatives in a will? (Top)

Yes, a Californian is entitled to disinherit everybody, except their spouse if applicable. In the case of a spouse, the testator may only give away half of the couple’s community property but may give away all of the testator’s separate property. The following individuals should be specifically disinherited:

California does not have forced heirship laws such as France, Germany, Switzerland and Japan, which limits a testator’s right to dispose of their estate by allowing the testator’s heirs to receive an inheritance regardless of the testator’s wishes. For instance, if you wanted to disinherit your children because they listened to horrendous music, see Justin Bieber, watched revolting television, see Jersey Shore or liked awful movies, see any Mission Impossible movie, they could negate your desire to do so.

21. Are wills public documents? (Top)

Yes, a will is a public document provided that a will is written and it is appropriately lodged with the local probate court. Prob C §8200

22. Is a photocopied will admissible to probate court? (Top)

No, California law requires that an original will be executed in order to be accepted for probate. Therefore, a photocopied will is insufficient for probate purposes.

23. How much does an attorney charge to write a will? (Top)

The attorney fees I have seen charged for a will range from $400 – $800. Obviously this sample is not irrefutably representative of attorney fees for writing a will in California. Rather it has been my personal experience.

24. Can I just buy a will online? (Top)

Yes, you are free to purchase a will online. I would never recommend anybody to do so however. The reason being is that these wills are cookie-cutter templates so the buyer has to hope that there situation fits within the cookie-cutter template of the online will.

25. Do I need to write a will? (Top)

No, there is no legal requirement for writing a will. In particular, studies have shown that a majority of Americans have not written a will. This is not necessarily disastrous because many assets can distributed through beneficiary designation whereby the problems associated without writing a will have largely been mitigated. Generally speaking, however, if a person has assets of over say $10,000, then writing a will would be recommended.

26. I have more wills questions how can they be answered? (Top)

Please call my office at (408) 866-8382 or email me at s.miri@mirilaw.com

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